EXHIBIT 10.1
AMENDMENT NO. 10 TO CREDIT AGREEMENT
AMENDMENT NO. 10 AND TENTH WAIVER (this "AMENDMENT"), dated as
of April 14, 2000, to and under the Credit Agreement, dated as of March 30, 1998
(as heretofore amended, supplemented or otherwise modified, the "CREDIT
AGREEMENT"), among SUNBEAM CORPORATION (the "PARENT"), the SUBSIDIARY BORROWER
referred to therein, the LENDERS party thereto, XXXXXX XXXXXXX SENIOR FUNDING,
INC., as Syndication Agent, BANK OF AMERICA, N.A., as Documentation Agent, and
FIRST UNION NATIONAL BANK, as Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Parent, the Subsidiary Borrower, the Lenders and
the Agents are parties to the Credit Agreement;
WHEREAS, the Parent has requested that the Administrative
Agent and the Lenders agree to continue to waive, until April 10, 2001, certain
provisions of the Credit Agreement and, in connection therewith, to amend and
waive certain provisions of the Credit Agreement, all as more fully set forth
below;
WHEREAS, the Administrative Agent and the Lenders are willing
to agree to such requested waivers and amendments, but only upon the terms and
conditions of this Amendment; and
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1 SECTION. DEFINED TERMS; REFERENCES. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Credit Agreement has the meaning assigned to such term in the Credit Agreement.
Each reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the Credit Agreement shall, after this Amendment becomes
effective, refer to the Credit Agreement as amended hereby. Except as herein
specifically waived or amended, all terms and provisions of the Credit Agreement
shall remain in full force and effect and shall be performed by the parties
thereto according to its terms and provisions. This Amendment is limited as
specified and shall not constitute a modification, amendment or waiver of any
other provision of the Credit Agreement or any other Loan Document or indicate
the Lenders' willingness to consent to any such other modification, amendment or
waiver of the Credit Agreement or any other Loan Document, including without
limitation, any modification, amendment or waiver for any other date or time
period or in connection with any other transaction.
1 SECTION. DELETION AND ADDITION OF CERTAIN DEFINED TERMS.
Section 1.01 of the Credit Agreement is amended:
(a) to delete in their entirety the defined terms "BUSINESS
PLAN", "ELIGIBLE SUBSIDIARY" and "MANDATORY PREPAYMENT AMOUNT" in such
Section; and
(b) to add in their appropriate alphabetical order in such
Section the following defined terms:
""BUSINESS PLAN" means (i) in respect of the 2000
fiscal year of the Parent, the business plan for such fiscal
year delivered to the Lenders on February 15, 2000 and (ii) in
respect of each fiscal year of the Parent after the 2000
fiscal year of the Parent, the business plan for such fiscal
year delivered to the Lenders pursuant to Section 5.02(C).
"EASTPAK TRANSACTION" means the sale of substantially
all of the assets of, and the business conducted by, Eastpak
Corporation and its Subsidiaries, pursuant to the VF Purchase
Agreement.
"ELIGIBLE SUBSIDIARY" means Xxxxxxx, at any time it
is a Subsidiary.
"FIFTH AMENDMENT FEE" has the meaning assigned to
such term in Section 2.11(d).
"NEW RECEIVABLES CAPITAL INVESTMENT" has the
meaning assigned to the term "Capital Investment" in the New
Receivables Program Purchase Agreement.
"NEW RECEIVABLES PROGRAM" means the accounts
receivable sales program established pursuant to (i) the New
Receivables Program Purchase Agreement and any other documents
(including without limitation, any intercreditor agreement)
executed in connection therewith or pursuant thereto, all in
form and substance satisfactory to the Required Lenders, and
(ii) any other agreements executed and delivered in accordance
with Section 6.09(c)(y).
"NEW RECEIVABLES PROGRAM PURCHASE AGREEMENT" means
the Receivables Purchase Agreement to be entered into by and
among Redwood Receivables Corporation, General Electric
Capital Corporation, Xxxxxxx Funding Corporation, Xxxxxxx,
Powermate and the Parent, in form and substance satisfactory
to the Required Lenders, as amended, supplemented or otherwise
modified in accordance with Section 6.09(c).
"NEW RECEIVABLES PURCHASE LIMIT" means $95,000,000 or
such other amount designated as the "Maximum Facility
Commitment" pursuant to the New Receivables Program Purchase
Agreement.
"POWERMATE" means Xxxxxxx Powermate, Inc., a
Nebraska corporation.
"RESTATEMENT RELATED LITIGATION" means any
litigation, or investigation by any Governmental Authority,
relating to the restatement in October, 1998 of the financial
statements of the Parent and its Consolidated Subsidiaries for
the 1996 and 1997 fiscal years of the Parent and for the
fiscal quarter of the Parent ended March 31, 1998.
3
"TENTH AMENDMENT EFFECTIVE DATE" means the Amendment
Effective Date under and as defined in Amendment No. 10 and
Tenth Waiver, dated as of April 14, 2000, to and under this
Agreement.
"VF PURCHASE AGREEMENT" the Asset Purchase Agreement,
dated as of March 18, 2000, between VF Corporation and the
Parent, together with any non-material amendments thereof.".
2 SECTION. DEFINITION OF CONSOLIDATED EBITDA. The definition of
"CONSOLIDATED EBITDA" in Section 1.01 of the Credit Agreement is amended:
(a) to replace the word "and" at the end of clause
(ii) in paragraph (2) in such definition with a comma;
(b) to add immediately after clause (iii) in
paragraph (2) in such definition the phrase "and (iv) expenses
on account of Restatement Related Litigation (but deducting
cash disbursements (net of any cash payments received by the
Parent from insurance companies and/or other third parties in
respect of any such expenses) in excess of $12,300,000 on or
after January 1, 2000)";
(c) to replace the period at the end of paragraph (3)
in such definition with the phrase ", PLUS"; and
(d) to add immediately after paragraph (3) in such
definition the following new paragraph (4):
"(4) foreign currency non-cash gains or
losses related to intercompany obligations incurred
prior to January 1, 2000, to the extent included in
consolidated net income in paragraph (1) above.".
3 SECTION. REPAYMENT OF TERM LOANS.
(a) Paragraph (a) of Section 2.09 of the Credit Agreement is
amended to add immediately before the period at the end of such paragraph the
following proviso:
"PROVIDED FURTHER that, effective upon the Tenth
Amendment Effective Date, the date of payment shall be
extended to (x) August 15, 2000 for $69,250,000 of the Term
Loans scheduled to be paid on April 10, 2000 pursuant to the
immediately preceding proviso, (y) November 30, 2000 for
$30,750,000 of the Term Loans scheduled to be paid on April
10, 2000 pursuant to the immediately preceding proviso and (z)
April 10, 2001 for (i) $38,500,000 of the Terms Loan scheduled
to be paid on April 10, 2000 pursuant to the immediately
preceding proviso, (ii) the $66,750,000 installment of the
Tranche A Term Loans scheduled to be paid on each of September
30, 2000 and March 31, 2001 and (iii) the $2,500,000
installment of the Tranche B Term Loans scheduled to be paid
on each of September 30, 2000 and March 31, 2001.".
4
(b) Paragraph (b)(i) of Section 2.09 of the Credit Agreement
is amended to replace the phrase "to prepay Term Loans (or the Term Commitments
shall be reduced)" in such paragraph with the phrase "to prepay the Loans".
(c) Paragraph (b)(i)(w) of Section 2.09 of the Credit
Agreement is amended in its entirety to read as follows:
"(w) on December 31, 2000 with the amount, if any, by
which the sum of funds on deposit in the Concentration Account
on such date, after giving effect to Section 2.09(d)(ii), PLUS
the aggregate amount of the unused Revolving Commitments on
such date exceeds $185,000,000.".
(d) Paragraph (b)(i)(x) of Section 2.09 of the Credit
Agreement is amended:
(i) to replace the phrase "except as otherwise set
forth in Section 2.09(d)(i)" in such Section with the phrase
"except as otherwise set forth in Sections 2.09(b)(iv) and
(d)(i)";
(ii) to add immediately after the term "Indebtedness
Incurrence" in clause (2) in such paragraph the phrase "or any
issuance of the stock of the Parent or any Subsidiary (other
than any issuance of stock of the Parent pursuant to and in
accordance with stock option plans or other benefit plans or
employment arrangements for management or employees of the
Parent and its Subsidiaries)";
(iii) to add immediately after the term "Existing
Receivables Program" in the proviso in such paragraph the
phrase "and the New Receivables Program"; and
(iv) to replace the reference to "$100,000,000" in
the proviso in such paragraph with a reference to
"$195,000,000".
(e) Paragraph (b)(iv) of Section 2.09 of the Credit Agreement
is amended in its entirety to read as follows:
"(iv) The amount of any repayment of the Loans made
pursuant to clauses (i) and (ii) of this paragraph shall be
applied (A) FIRST, in the direct order of maturity of each
subsequent scheduled repayment of the Term Loans, through and
including the repayment due on November 30, 2000, to be made
by the Borrowers pursuant to paragraph (a) of this Section,
PROVIDED that if (i) the fee payable pursuant to Section
2.11(e) is paid prior to consummation of the Eastpak
Transaction, $8,500,000 of the Net Cash Proceeds of the
Eastpak Transaction shall be applied as a prepayment of the
Revolving Loans (but not reduce the Revolving Commitments or
the Retained Asset Sale Proceeds Amount referred to below),
and (ii) the $69,250,000 amortization payment due on August
15, 2000 is paid prior to consummation of the Eastpak
Transaction, $69,250,000 of the Net Cash Proceeds of the
Eastpak Transaction shall be applied as a prepayment of the
Revolving Loans (but not reduce the Revolving Commitments or
the Retained Asset Sale Proceeds Amount referred to below),
(B) SECOND, to prepay the Revolving Loans (but not reduce the
Revolving Commitments) in an amount
5
equal to $8,500,000; the amount of any such prepayment of the
Revolving Loans shall create a reserve (the "COMMITMENT
RESERVE") under the Revolving Commitments to be borrowed only
to pay on November 30, 2000 the amount of the Fifth Amendment
Fee due on November 30, 2000 pursuant to Section 2.11(d), (C)
THIRD, in the case of any prepayment of the Loans made
pursuant to clause (i)(x)(1) of this paragraph only, to prepay
an amount of up to $25,000,000 (the "RETAINED ASSET SALE
PROCEEDS AMOUNT") of the Revolving Loans (but not reduce the
Revolving Commitments), (D) FOURTH, in the direct order of
maturity of each scheduled repayment of the Term Loans due
after November 30, 2000 through and including the repayment
due on April 10, 2001, to be made by the Borrowers pursuant to
paragraph (a) of this Section, and (E) FIFTH, to reduce
ratably the amount of all remaining scheduled repayments of
the Term Loans due after April 10, 2001.".
(f) Paragraph (d) of Section 2.09 of the Credit Agreement is
amended (i) to replace the word "and" immediately before the reference to
"(iii)" in such paragraph with a comma and (ii) to add immediately before the
period at the end of such paragraph the phrase "and (iv) as set forth in
Sections 2.09(b)(iv)(B) and (C) above".
4 SECTION. FEES. Section 2.11 of the Credit Agreement is
amended:
(a) to replace in its entirety paragraph (d) in such
Section to read as follows:
"(d) The Parent agrees that on the Fifth
Amendment Effective Date the Lenders shall have
earned a fee (as such fee may be increased pursuant
to this paragraph (d), the "FIFTH AMENDMENT FEE") in
an amount equal to .25% of the Commitments in effect
as of the Fifth Amendment Effective Date; PROVIDED
that on the Tenth Amendment Effective Date, the Fifth
Amendment Fee shall be increased and fully earned in
an amount equal to .50% of the Commitments in effect
as of the Fifth Amendment Effective Date; PROVIDED
FURTHER that (i) on the earlier of (A) November 30,
2000 and (B) the date on which the Commitments shall
have terminated and the principal of and interest on
the Loans and all other amounts payable by the
Obligors under this Agreement and the other Loan
Documents shall have been paid in full, the Parent
shall pay to the Administrative Agent, for the
account of the Lenders, a portion of the Fifth
Amendment Fee equal to .50% of the Commitments in
effect as of the Fifth Amendment Effective Date and
(ii) if the Aggregate Exposure shall not have been
reduced to $1,200,000,000 or less on or before
November 30, 2000, the Fifth Amendment Fee shall be
increased to, and fully earned on such date in, an
amount equal to 1.00% of the Commitments in effect as
of the Fifth Amendment Effective Date and, in such
event, the Parent shall pay to the Administrative
Agent, for the account of the Lenders, on the earlier
of (A) June 30, 2001 and (B) the date on which the
Commitments shall have terminated and the principal
of and interest on the Loans and all other amounts
payable by the Obligors under this Agreement and the
other Loan Documents shall have been paid
6
in full, the unpaid portion of such increased amount
of the Fifth Amendment Fee."; and
(b) to reletter paragraph (e) in such Section as
paragraph (f) and to add immediately after paragraph (d) in
such Section the following new paragraph (e):
"(e) The Parent further agrees that on the
Tenth Amendment Effective Date the Lenders shall have
earned a fee in an amount equal to .50% of the
Commitments in effect as of the Tenth Amendment
Effective Date, which fee the Parent shall pay to the
Administrative Agent, for the account of the Lenders,
on the earliest of (i) June 30, 2000, (ii) the date
of the consummation of the Eastpak Transaction and
(iii) the date on which the Commitments shall have
terminated and the principal of and interest on the
Loans and all other amounts payable by the Obligors
under this Agreement and the other Loan Documents
shall have been paid in full.".
5 SECTION. CONDITIONS TO EACH CREDIT EVENT. Section 4.04 of the
Credit Agreement is amended to add immediately after paragraph (f) in such
Section the following new paragraph (g):
"(g) From and after the implementation of the New
Receivables Program, at the time of and immediately after
giving effect to such Borrowing, the aggregate New Receivables
Capital Investment shall not be less than 75% of the New
Receivables Purchase Limit, PROVIDED that, if the aggregate
New Receivables Capital Investment is less than 75% of the New
Receivables Purchase Limit at such time, this condition shall
nonetheless be deemed satisfied so long as at the time of and
immediately after giving effect to such Borrowing, no less
than 75% of the aggregate outstanding balance of all accounts
receivable owed to Xxxxxxx and Powermate shall be Eligible
Receivables (as defined in the New Receivables Program
Purchase Agreement).".
6 SECTION. FINANCIAL STATEMENTS. Section 5.01 of the Credit
Agreement is amended:
(a) to replace the phrase "within 90 days after the
end of each fiscal year of the Parent," in paragraph (a) in
such Section with the phrase "(i) within 46 days after the end
of each fiscal year of the Parent, its preliminary unaudited
consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end
of and for such fiscal year and (ii) within 105 days after the
end of each fiscal year of the Parent,";
(b) to replace the reference to "Xxxxxx Xxxxxxxx LLP"
in paragraph (a) in such Section with a reference to "Deloitte
& Touche LLP";
(c) to replace the reference to "60 days" in
paragraph (b) in such Section with a reference to "45 days";
7
(d) to replace the reference to "90 days" in the
parenthetical in paragraph (b) in such Section with a
reference to "105 days";
(e) to replace the phrase "under clause (a) or (b)
above and clauses (A) and (J) of Section 5.02" in paragraph
(c) in such Section with the phrase "under clause (a)(ii) or
(b) above and Section 5.02(A)";
(f) to replace the phrase "Sections 6.01 and 6.11
through 6.17" in paragraph (c) in such Section with the phrase
"Sections 6.01 and 6.11 through 6.16"; and
(g) to replace the phrase "under clause (a) above" in
paragraph (d) in such Section with the phrase "under clause
(a)(ii) above".
7 SECTION. ADDITIONAL INFORMATIONAL REQUIREMENTS. Section 5.02
of the Credit Agreement is amended:
(a) to replace the phrase "On or before the last
Business Day of each month" in paragraph (B)(i) in such
Section with the phrase "Within five days after the end of
each month";
(b) to replace the reference to "fifteenth day" in
paragraph (B)(ii) in such Section with a reference to
"twentieth day";
(c) to replace in their entirety paragraphs (C)
through (E) of such Section to read as follows:
"(C) (i) On or before December 31st of each
calendar year, a preliminary Business Plan for the
immediately following fiscal year of the Parent
setting forth for each Strategic Business Unit and on
a consolidated and consolidating basis monthly
forecasted income statements, cash flow statements
and balance sheets, in each case on a preliminary
basis, and (ii) on or before February 22nd of such
fiscal year, a final Business Plan for such fiscal
year setting forth for each Strategic Business Unit
and on a consolidated and consolidating basis monthly
forecasted income statements, cash flow statements
and balance sheets, in each case on a final basis.
(D) On or before January 31st of each
calendar year, projections for the immediately
following two fiscal years of the Parent, on a
preliminary basis, setting forth (1) for each
Strategic Business Unit and on a consolidated basis
projected summaries of net sales and EBITDA and (2)
on a consolidated basis projected cash flow
statements and balance sheets and (ii) on or before
February 28th of each such calendar year, projections
for the immediately following two fiscal years of the
Parent, on a final basis, setting forth (1) for each
Strategic Business Unit and on a consolidated basis
projected summaries of net sales and EBITDA and (2)
on a consolidated basis projected cash flow
statements and balance sheets.
8
(E)(1) On or before September 30, 2000, the
Parent shall present to the Lenders its written plan
for meeting the amortization payments due on or
before September 30, 2001 and (2) on or before
February 1, 2001, the Parent shall present to the
Lenders its updated written plan, in form and
substance reasonably satisfactory to the Lenders, for
meeting the amortization payments due on or before
September 30, 2001."; and
(d) to replace in their entirety paragraphs (H), (J)
and (K) in such Section with the following new paragraphs (H),
(J) and (K):
"(H) Biweekly, a report summarizing the
status of all Restatement Related Litigation (on or
before the last day of each month, in the case of any
other litigation commenced after the Fifth Amendment
Effective Date if such other litigation involves
potential liability and/or projected costs in excess
of $3,500,000), including all fees and expenses
incurred by the Parent or any of its Subsidiaries to
the extent such amounts have been reported to the
Parent, together with copies of all material
pleadings filed with respect to any Restatement
Related Litigation since the date of the last report
delivered pursuant to this paragraph (H).
(J)(1) Biweekly until the termination of the
transitional arrangements contemplated by the VF
Purchase Agreement, a report summarizing the status
of the developments and efforts of the Parent and its
Subsidiaries in relation to the Eastpak Transaction,
and (2) on or before the last day of each month, a
report summarizing (x) the status of any efforts of
the Parent to explore strategic alternatives for any
of its Strategic Business Units and (y) developments
in connection with, and Investments in, Xxxxxx
Products, Inc.
(K)45 days after the end of each fiscal
quarter, beginning with the fiscal quarter ended
March 31, 2000, (1) projections for the four fiscal
quarters immediately following the fiscal quarter
then ended, setting forth on a consolidated basis
quarterly forecasted income statements, cash flow
statements and balance sheets and (2) a report of key
strategic initiatives, together with a timetable with
respect to the implementation of such initiatives
during the period of the four fiscal quarters
immediately following the fiscal quarter then
ended.".
8 SECTION. INDEBTEDNESS. Section 6.01 of the Credit Agreement is
amended:
(a) to replace paragraph (c) in such Section in its
entirety to read as follows:
"(c) (i) Indebtedness of the Parent to any
Subsidiary and of any Subsidiary Guarantor to the
Parent or any Subsidiary, (ii) Indebtedness existing
on the Tenth Amendment Effective Date of the Parent
to any Subsidiary and of any Subsidiary to the Parent
or any other Subsidiary, (iii) Indebtedness of any
Subsidiary organized under the laws of any
jurisdiction outside the United States to any other
Subsidiary organized under the laws of any
9
jurisdiction outside the United States, (iv)
Indebtedness of any Subsidiary organized under the
laws of any jurisdiction outside the United States to
the Parent or any Subsidiary Guarantor in an
aggregate amount not to exceed $5,000,000 for all
such Subsidiaries at any time outstanding, (v)
Indebtedness of Xxxxxx Products, Inc. to the Parent
or any Subsidiary Guarantor, (vi) Indebtedness of any
Inactive Subsidiary to the Parent or any Subsidiary
in respect of environmental remediation, litigation
and product liability issues and (vii) Indebtedness
of any Inactive Subsidiary to the Parent or any
Subsidiary (exclusive of Indebtedness permitted under
clause (vi) of this paragraph) in an amount not to
exceed $100,000 at any time outstanding;";
(b) to replace the reference to "$40,000,000" in
paragraph (g) in such Section with a reference to
"$50,000,000"; and
(c) to replace paragraph (h) in such Section in its
entirety to read as follows:
"(h) other unsecured Indebtedness in an
aggregate principal amount not exceeding $5,000,000
at any time outstanding.".
9 SECTION. LIENS. Paragraph (f) of Section 6.02 of the Credit
Agreement is amended to add immediately before the semicolon at the end of such
paragraph the phrase "and the New Receivables Program".
10 SECTION. FUNDAMENTAL CHANGES; ASSET SALES. Paragraph (c) of
Section 6.03 of the Credit Agreement is amended:
(a) to add immediately after the reference to "the
Existing Receivables Program" in such paragraph the phrase "or
the New Receivables Program";
(b) to replace the word "and" immediately preceding
the reference to "(ii)" in clause (y) in the proviso in such
paragraph with a comma; and
(c) to amend in its entirety clause (y)(ii) in the
proviso in such paragraph to read as follows: "(ii) other
Asset Sales the fair market value of which does not exceed
$5,000,000 in the aggregate for any such Asset Sale or series
of related Asset Sales and (iii) Asset Sales of Non-Core
Assets".
11 SECTION. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. Section 6.04 of the Credit Agreement is amended:
(a) to replace the reference to "Material
Subsidiaries" in the introductory clause in such Section with
a reference to "Subsidiaries";
(b) to replace paragraph (c) in such Section in its
entirety to read as follows:
10
"(c) loans or advances (i) made by the
Parent to any Material Subsidiary and made by any
Subsidiary to the Parent or any Material Subsidiary,
(ii) existing on the Tenth Amendment Effective Date
made by the Parent to any Subsidiary and made by any
Subsidiary to the Parent or any other Subsidiary and
(iii) constituting Indebtedness permitted under
Sections 6.01(c);";
(c) to add immediately before the semicolon at the
end of paragraph (d) in such Section the phrase "and any
Guarantee by the Parent of the performance of any Subsidiary
pursuant to the New Receivables Program"; and
(d) to add immediately before the semicolon at the
end of paragraph (f) in such Section the phrase "and capital
contributions, or deemed capital contributions, by Coleman or
Powermate in Xxxxxxx Asset Diversification, Inc. pursuant to
the New Receivables Program".
12 SECTION. RESTRICTED PAYMENTS; VOLUNTARY PAYMENTS. Paragraph
(b) of Section 6.06 of the Credit Agreement is amended to add immediately before
the period at the end of such paragraph the following: "or (iii) make any
payment in respect of the Existing Insurance Loans or the Additional Insurance
Loans (each such term as defined in the Seventh Waiver and Consent, dated as of
March 27, 2000, under this Agreement) other than from the proceeds of the
benefits payable under the applicable insurance policies pursuant to which the
Existing Insurance Loans and Additional Insurance Loans were made".
13 SECTION. MODIFICATION OF CERTAIN DOCUMENTS. Section 6.09 of
the Credit Agreement is amended to add immediately after paragraph (b) of such
Section the following new paragraph (c):
"(c) From and after the Tenth Amendment Effective
Date, without the consent of the Required Lenders, (x) the
Parent will not, and will not permit any of its Subsidiaries
to, consent to or solicit or enter into any amendment or
supplement to, or any waiver or other modification of, the New
Receivables Program Purchase Agreement, any document executed
in connection therewith or pursuant thereto or any receivables
sale agreements of the type described in clause (y) below if
such amendment, supplement, waiver or other modification (i)
would result in a reduction of the New Receivables Purchase
Limit or (ii) would otherwise reduce the financing available
to the Parent or any of its Subsidiaries pursuant to the New
Receivables Program or have an adverse effect on the interests
of the Lenders or the Administrative Agent and (y) the Parent
will not, and will not permit any of its Subsidiaries to,
enter into any receivables sale agreement relating to the New
Receivables Program other than a receivables sale agreement
intended to provide for the inclusion of certain accounts
receivable of the Parent or such Subsidiary in the New
Receivables Program, which receivables sale agreement shall be
in form and substance reasonably satisfactory to the Required
Lenders.".
14 SECTION. CAPITAL EXPENDITURES. Section 6.11 is amended to
replace in its entirety the last paragraph in such Section with the following
new paragraph:
11
"Notwithstanding the foregoing, Consolidated Capital
Expenditures at any time during each of the periods set forth
below will not exceed the amount set forth below opposite such
period:
PERIOD AMOUNT
January 1, 2000 - June 30, 2000 $50,000,000
January 1, 2000 - September 30, 2000 $70,000,000
January 1, 2000 - December 31, 2000 $83,000,000
January 1, 2000 - March 31, 2001 $100,000,000".
1 SECTION. CONSOLIDATED EBITDA. Section 6.15 is amended in its
entirety to read as follows:
"SECTION 6.15. CONSOLIDATED EBITDA. At the last day
of each calendar month set forth below, Consolidated EBITDA
(excluding bank amendment expenditures and expenditures for
the Lenders' advisors, in each case to the extent deducted in
determining Consolidated EBITDA) for the period from January
1, 2000 through the last day of such month will not be less
than the amount set forth below opposite such month:
MONTH CONSOLIDATED EBITDA
April, 2000 $35,800,000
May, 2000 $53,800,000
June, 2000 $69,500,000
July, 2000 $86,000,000
August, 2000 $104,400,000
September, 2000 $128,300,000
12
MONTH CONSOLIDATED EBITDA
October, 2000 $149,900,000
November, 2000 $173,500,000
December, 2000 $186,400,000
January, 2001 $186,300,000
February, 2001 $186,700,000
March, 2001 $213,600,000".
1 SECTION. RECEIVABLES PROGRAM. Section 6.21 is amended in its
entirety to read as follows:
"SECTION 6.21. RECEIVABLES PROGRAMS. The Parent
will not, and will not permit any Subsidiary to, fail (a)(i)
to maintain the Existing Receivables Program, and comply with
the terms and provisions of such program, unless within 60
days after termination thereof, the Existing Receivables
Program is replaced with an alternative accounts receivables
program, which shall be on terms and conditions, and provide
an amount of financing, reasonably satisfactory to the
Required Lenders and (ii) from and after the implementation
thereof, to maintain the New Receivables Program, and comply
with the terms and provisions of such program, unless prior to
any termination thereof, a replacement program on terms and
conditions, and providing for an amount of financing,
reasonably satisfactory to the Required Lenders is implemented
and (b) to use their respective reasonable best efforts to
maximize the aggregate Capital Investment up to the
Receivables Purchase Limit and to maximize the aggregate New
Receivables Capital Investment up to the New Receivables
Purchase Limit.".
2 SECTION. ADDITIONAL NEGATIVE COVENANT. Article 6 of the Credit
Agreement is amended to add immediately after Section 6.21 the following new
Section 6.22:
"SECTION 6.22. EASTPAK TRANSACTION. The Parent
will not, and will not permit any Subsidiary to, fail to use
their respective reasonable best efforts to consummate the
Eastpak Transaction and, in connection therewith, the Parent
shall, and shall cause its Subsidiaries to, provide such
information as reasonably
13
requested by the Administrative Agent or the Lenders to review
and discuss such efforts.".
3 SECTION. REPLACEMENT OF SCHEDULES AND NEW EXHIBIT. The Credit
Agreement is amended to replace Schedule 3.01(a) (Material Domestic
Subsidiaries), Schedule 3.01(b) (Material Foreign Subsidiaries) and Schedule A
(Strategic Business Units) thereto with new Schedules in the forms attached to
this Amendment as Exhibits A, B and C, respectively.
4 SECTION. WAIVER WITH RESPECT TO FINANCIAL STATEMENTS. The
Lenders hereby waive, until May 1, 2000, any Default or Event of Default by
reason of the failure of the Parent to comply with the requirement of Section
5.01(a) (FINANCIAL STATEMENTS AND OTHER INFORMATION) of the Credit Agreement,
after giving effect to the Eighth Waiver, dated as of March 30, 2000 under the
Credit Agreement, to deliver to the Administrative Agent on or before April 14,
2000 the financial statements set forth in such Section.
5 SECTION. WAIVER TO PERMIT EASTPAK TRANSACTION. The Lenders
hereby waive Section 6.03 (FUNDAMENTAL CHANGES; ASSET SALES) of the Credit
Agreement (after giving effect to this Amendment) solely to the extent necessary
to permit the Parent to consummate the Eastpak Transaction pursuant to the VF
Purchase Agreement; PROVIDED that the foregoing waiver is conditioned upon the
VF Purchase Agreement not having been amended or modified in any material
respect or in any manner that could reasonably be expected to have an adverse
effect on the Lenders, in either case without the prior written consent of the
Required Lenders. Notwithstanding anything to the contrary contained in Section
2.09(b)(iv) of the Credit Agreement (after giving effect to this Amendment) the
Net Cash Proceeds of the Eastpak Transaction shall be applied FIRST, to pay in
full the fee payable from such Net Cash Proceeds, unless previously paid,
pursuant to Section 2.11(e) of the Credit Agreement and SECOND, to the Term
Loans in accordance with Section 2.09(b)(iv) of the Credit Agreement, PROVIDED,
HOWEVER, the Parent may apply any post-closing adjustments to be paid to the
Parent pursuant to the VF Purchase Agreement to repay the Revolving Loans (but
not reduce the Revolving Commitments).
6 SECTION. WAIVERS OF FINANCIAL STATEMENT DELIVERY, HEDGING
OBLIGATIONS, FINANCIAL COVENANTS AND REPRESENTATIONS.
(a) The Lenders hereby waive, until April 10, 2001, any Default or
Event of Default arising by reason of the representations and warranties
contained in Sections 3.04 (FINANCIAL CONDITION; NO MATERIAL ADVERSE Change),
3.06 (LITIGATION AND ENVIRONMENTAL MATTERS) and 3.07 (COMPLIANCE WITH LAWS AND
AGREEMENTS) of the Credit Agreement to have proven to have been materially
incorrect when made or deemed made at any time prior to the Fifth Amendment
Effective Date.
(b) The Lenders hereby waive, until April 10, 2001, any Default or
Event of Default arising by reason of the representation and warranty contained
in Section 3.11 (DISCLOSURE) of the Credit Agreement to have proven to have been
materially incorrect when made or deemed made at any time prior to the Fifth
Amendment Effective Date; PROVIDED that such waiver is conditioned upon the
representation and warranty contained in the second sentence of such Section
3.11 on and after the Fifth Amendment Effective Date to be true and correct (for
purposes of Section 4.04(b), and not materially incorrect, for purposes of
paragraph (c) of Article 7) in respect of all reports, financial statements,
certificates or other information (taken as a
14
whole) furnished on or after September 30, 1998 by or on behalf of any Obligor
to the Administrative Agent or any Lender.
(c) The Lenders hereby waive, until April 10, 2001, (i) any Default or
Event of Default arising by reason of the representation and warranty contained
in Section 3.04(c) or Section 3.14 (ACQUISITION DOCUMENTS) of the Credit
Agreement to have proven to have been materially incorrect when made or deemed
made and (ii) the condition under Section 4.04(b) that each representation and
warranty referenced in clause (i) be true and correct when made or deemed made.
(d) The Lenders hereby waive, until April 10, 2001, any Default or
Event of Default arising by reason of the failure by the Parent to comply with
Section 5.10 (APPROVED HEDGING AGREEMENTS) of the Credit Agreement.
(e) The Lenders hereby waive, until April 10, 2001, (i) the Events of
Default arising by reason of the failure by the Parent to comply with Section
6.12 (LEVERAGE RATIO), Section 6.13 (INTEREST COVERAGE RATIO) and Section 6.14
(FIXED CHARGE COVERAGE RATIO) of the Credit Agreement at the last day of the
fiscal quarters of the Parent ending during the period on and after June 30,
1998 through and including December 31, 1999 and (ii) any Event of Default
arising by reason of any failure by the Parent to comply with Section 6.12
(LEVERAGE RATIO), Section 6.13 (INTEREST COVERAGE RATIO) and Section 6.14 (FIXED
CHARGE COVERAGE RATIO) of the Credit Agreement at the last day of any fiscal
quarter of the Parent during the 2000 fiscal year of the Parent and at the last
day of the fiscal quarter of the Parent ending March 31, 2001.
(f) The Lenders hereby waive, until April 10, 2001, any Default or
Event of Default that existed on June 30, 1998. This waiver shall not constitute
a waiver of any Default or Event of Default existing on or after July 1, 1998
after giving effect to this Amendment.
7 SECTION. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
8 SECTION. COUNTERPARTS. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
9 SECTION. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. After giving
effect to this Amendment, the Parent and the Subsidiary Borrower (to the extent
applicable to it thereunder) hereby represent and warrant that all
representations and warranties contained in the Credit Agreement are true and
correct on and as of the Amendment Effective Date (unless stated to relate to a
specific earlier date, in which case, such representations and warranties shall
be true and correct as of such earlier date) and that no Default or Event of
Default shall have occurred and be continuing or would result from the execution
and delivery of this Amendment.
10 SECTION. EFFECTIVENESS. This Amendment shall become effective on the
date (the "AMENDMENT EFFECTIVE DATE") on which:
(a) the Administrative Agent shall have received from each of the
Parent, the Subsidiary Borrower and the Lenders, a counterpart hereof signed by
such party or facsimile or
15
other written confirmation (in form satisfactory to the Administrative Agent)
that such party has signed a counterpart hereof;
(b) the Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Parent, the
authorization of the transactions contemplated by this Amendment and any other
legal matters relating to any of the foregoing, all in form and substance
satisfactory to the Administrative Agent and its counsel;
(c) the Lenders shall be (and by their execution hereof, hereby confirm
that they are) satisfied with (a) all of their legal, regulatory and financial
due diligence and (b) the cash flow and other projections and other financial
information provided by the Parent for the period through March 31, 2001; and
(d) the Administrative Agent shall have received payment of all fees
and other amounts due and payable pursuant to the Credit Agreement, including
reimbursement or payment of all out-of-pocket expenses of the Administrative
Agent and the Lenders invoiced to the Parent and required to be reimbursed or
paid by the Parent under the Credit Agreement.
16
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
SUNBEAM CORPORATION
By__________________________________________
Name:
Title:
THE XXXXXXX COMPANY, INC.
By__________________________________________
Name:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
individually and as Syndication Agent
By__________________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
individually and as Documentation Agent
By__________________________________________
Name:
Title:
FIRST UNION NATIONAL BANK,
individually and as Administrative Agent
By__________________________________________
Name:
Title:
17
